Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75 C 1658 - William J. Lynch, Judge.
Cummings, Pell, and Stevens, Circuit Judges.
Appellant Citizens for a Better Environment (CBE) has limited this appeal to a denial of a preliminary injunction against the City of Park Ridge, Illinois, and the Park Ridge Chief of Police. The other communities and officials who were defendants in the district court are not involved in this appeal.
CBE, a non-profit Illinois corporation registered with the Illinois Attorney General's Office of Charitable Trusts, is allegedly a citizens' environmental group that engages in dissemination of information, educational programs, research and investigation concerning environmental issues and litigation of pollution complaints. A major part of its activities is carried on by a door-to-door canvass in the Chicago area. CBE informs the public of its activities, discusses environmental problems, and solicits financial contributions.
At issue on appeal is a City of Park Ridge ordinance (14-1-2), which in pertinent part, prohibits
Each violation of this ordinance is punishable by a fine of not less than $100.00 nor more than $500.00.
CBE brought suit in the district court seeking declaratory relief and a preliminary and permanent injunction against enforcement of the ordinance, contending that it violated its First Amendment right of free speech. The district court denied the preliminary injunction after a hearing. Although the court did not indicate its reasoning on the issues involved in the case, it is apparent that the court felt that CBE had not been denied its First Amendment rights by the ban on solicitation for funds in Park Ridge. A fortiori, for purposes of the preliminary injunction, the district court must have felt that CBE had no chance of prevailing on the merits.
This case is decided without oral argument by stipulation of the parties. On the record and the briefs, we reverse.
Jurisdiction in this case is based on 42 U.S.C. § 1983, and 28 U.S.C. § 1343(3), against defendant Police Chief, and on 28 U.S.C. § 1331, against defendant City of Park Ridge. Since the Park Ridge City Council members have apparently been named as defendants for the first time on appeal, we dismiss the appeal as to them.
In determining whether to grant a preliminary injunction, the district court must balance the probability of ultimate success at the final hearing with the consequences of immediate irreparable injury possibly stemming from denial of the injunction. Scherr v. Volpe, 466 F.2d 1027, 1030 (7th Cir. 1972). The standard of review in an appeal from the denial of a preliminary injunction is whether the district court abused its discretion. Id.
We are satisfied in this case that CBE established both that it would suffer irreparable injury from the denial of the injunction and that it had a substantial likelihood of prevailing on the merits.
Initially, it must be noted that this Court has previously held that even the temporary deprivation of First Amendment rights constitutes irreparable harm in the context of a suit for an injunction. Schnell v. Chicago, 407 F.2d 1084, 1086 (7th Cir. 1969). Moreover, the requirement of irreparable harm in the sense of ripeness, see, e.g., Boyle v. Landry, 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758 (1971), is satisfied in this case. CBE alleged that one of its canvassers was arrested under the ordinance in March. Although the Park Ridge City Attorney denied that he had ever prosecuted anyone under the ordinance, he did concede that someone might have voluntarily paid the fine and been released without his knowledge. We conclude that CBE has made a sufficient showing that it would suffer irreparable harm from the denial of the preliminary injunction.
Second, CBE has made a strong showing that it has a substantial likelihood of success on the merits. However, in reaching this conclusion it is important to recognize at the outset what this case does not entail. This case does not present the issue of whether once a person has actively expressed his opposition to solicitation - e.g., a homeowner posts a "No Trespassing" sign - a canvasser who ignores such a directive can be prosecuted for trespass.The constitutionality of such an ordinance was upheld against a First Amendment attack in Hall v. Commonwealth, 188 Va. 72, 49 S.E.2d 369, appeal dismissed sub nom., Hall v. Virginia, 355 U.S. 875, 69 S. Ct. 240, 93 L. Ed. 418, reh. den., 335 U.S. 912, 69 S. Ct. 480, 93 L. Ed. 445 (1948). See also Rowan v. United States Post Office Dept., 397 U.S. 728, 25 L. Ed. 2d 736, 90 S. Ct. 1484 (1970); Martin v. Struthers, 319 U.S. 141, 147-148, 87 L. Ed. 1313, 63 S. Ct. 862 (1943). In fact, appellant urges on appeal that a less drastic means of achieving Park Ridge's purpose would be to allow homeowners to post "no trespassing" signs if they did not desire to receive canvassers, with trespassers punished by the state.
What is at issue in this case is whether in the absence of the communicated desire of a property owner not to receive canvassers, the state can nevertheless prohibit door-to-door solicitation of funds. Since at common law the presence of a knocker or a bell on the door signified a license to attempt entry, justifying initial entry by solicitors and peddlers, Breard v. Alexandria, 341 U.S. 622, 626, 95 L. Ed. 1233, 71 S. Ct. 920 (1951), 60 Am. Jur.2d Peddlers, Solicitors and Transient Dealers § 57 (1972), the question is ...